Unit Eleven: Affirmative Action and Immigration in the United States

Since the Civil Rights Movement, there has been an effort in American society to help historically disadvantaged groups. Affirmative action refers to achieving social goals such as economic and social equality through the use of race, ethnicity, and gender in the hiring process of businesses and in college admissions. The government definition of affirmative action is slightly different. It refers to programs to eliminate the current effects of past discrimination. There exists in America two main camps for the debate over affirmative action. On one side of the debate are those who favor affirmative action. They believe affirmative action programs are necessary to address the affects of past discrimination as well as to deal with current privileges awarded to the dominant culture. On the other side of the debate, are those opposed to affirmative action. those in opposition to affirmative action believe in equal opportunity for all and that affirmative action allows for reverse discrimination. Critics of affirmative action characterize affirmative action efforts as “quotas”. Some groups in society support affirmative action because they believe it helps level the economic playing field. Other groups are opposed to affirmative action because they believe in opportunity for all and because it allows for reverse discrimination.

Affirmative Action and Majority and Minority Group Support

The opposition of most whites to affirmative action programs can be seen in both surveys and elections. The surveys and polls show that the majority of whites oppose affirmative action if in involves any consideration of race as a factor in hiring or admissions. In addition, many whites see affirmative action as reverse discrimination. Some of the opposition is based on fears that any gains by minorities will be at the expense of whites, and some is reflective of racial prejudices. Below are some polls that explore American attitudes towards affirmative action.

“Which comes closer to your view about evaluating students for admission into a college or university? Applicants should be admitted solely on the basis of merit, even if that results in few minority students being admitted. OR, An applicant’s racial and ethnic background should be considered to help promote diversity on college campuses, even if that means admitting some minority students who otherwise would not be admitted.” Options rotated

Solely Merit

Race/ Ethnicity, Too

Unsure

%

%

%

ALL

69

27

4

Non-Hispanic whites

75

22

3

Blacks

44

49

7

Hispanics

59

36

5

.

“If two equally qualified students, one white and one black, applied to a major U.S. college or university, who do you think would have the better chance of being accepted to the college: the white student, the black student [options rotated] — or would they have the same chance?”

White Student

Black Student

Same Chance

Unsure

%

%

%

%

ALL

31

29

36

4

Non-Hispanic whites

24

34

38

4

Blacks

67

5

24

4

Hispanics

44

14

38

4

The next sections will focus on the controversy of whether affirmative action is necessary in the areas of employment and education.

Over the past few decades affirmative action for jobs and contracts has been enshrined in federal law and is clear in terms of what is and is not required. These requirements are not particularly hard to meet. For example, non-construction companies with fifty or more employees and at least $50,000 in contracts with the government must have an affirmative action plan, but these plans do not have to be filed with the Equal Employment Opportunity Commission (EEOC) or any other agency. Companies with a plan just have to make a “good faith effort” to hire whatever disadvantaged groups are in the local qualified labor pool. What this means is that affirmative action efforts are tied directly to how many people of a disadvantaged group, for example people of color, are available and qualified to do a particular job in a given area or industry.

The majority of affirmative action plans are voluntary. The mandatory affirmative action plans fall into three categories:

1) Federal Contractor. As mentioned above, businesses that are involved with government contracts must develop an affirmative action program. If no discrimination claims are filed, the business is considered in compliance.

2) Conciliation Agreement- when an employer has been sued for discrimination. A plan is then put in place to remedy whatever problem is present.

3) Court-ordered: When a firm has been sued and shows no willingness to make a change. This is the only plan where quotas are legal. An example would be the Milwaukee Police Department in the early 1990’s, where they were forced to hire one black for every white officer until racial parity was reached. At any given time, there are no more than a few dozen companies operating under such quota programs in the entire country.1 Not only are quotas rare, but enforcement is weak.

To many Americans making deliberate efforts to include people of color in jobs, contracting, and educational institutions is unnecessary. They believe that existing civil rights laws prohibit discrimination and that is enough to ensure equal opportunity. For those who support affirmative action, they believe there are a number of reasons why such an argument is inaccurate. They are:

1) The accumulated advantages of whites. Because of institutionalized discrimination, whites have over the years accumulated economic resources that provide an advantage over people of color. Martin Luther King Jr. compared the advantages to a race where one person had a huge lead and the other was still at the starting line.

2) The existence of “old boys networks”. Since many of the “old boys” are white, whites applying for jobs have an advantage. More than 80% of executives find their jobs through networking, and almost nine in ten jobs in the overall labor market are filled by word of mouth and never advertised. 2

3) There is strong evidence of ongoing discrimination against job applicants of color. Several studies have found that when discrimination “testers” (blacks and whites who are similarly dressed, similar qualifications, etc…) are sent out to apply for jobs and check for bias, whites receive interviews and job offers far more often than their black counterparts. One study found that whites were twenty-two percent more likely to receive an interview and forty-five percent more likely to receive a job offer than equally qualified blacks.3

Social scientists have shown that a white job applicant with a felony has the same chance for an interview as a black applicant with no felony. In essence, being a black male with a college degree is the equivalent of being a white criminal.

4) There is also research on the disadvantage of having a black sounding name. A study done by the University of Chicago and MIT found that when equally qualified job applicant resumes are sent to prospective employers, applicants with “white-sounding” names are fifty percent more likely to be called in for an interview than are applicants with ‘black-sounding” names.4

5. Racial earnings gaps persist at all levels of education and across all types of professions. According to the Integrated Public Use Microdata Series of the Census Bureau, whites with high school diplomas, college degrees, or master’s degrees all earn approximately twenty percent more than their black counterparts. Whites with professional degrees (medicine, law) earn thirty-one percent more than blacks and fifty-two percent more than similar Latinos.5

6. Affirmative action has not changed in any fundamental way the dominant position of white male owned businesses when it comes to procuring government contracts. Although people of color own fifteen percent of all businesses in the United States, they receive only 6.2 percent of federal contract dollars. White women, also covered by affirmative action programs, own thirty-eight percent of all businesses, yet receive only 2.3 percent of federal contracts. What this means is that white male-owned companies receive roughly 91.5 percent of all federal contract dollars, despite representing only forty-seven percent of all businesses in the nation.6 When the Supreme Court through out Philadelphia’s affirmative action program for contract work, the share of city contracts going to minorities fell from twenty-five percent to 3.5 percent. There was no evidence that the minority contractors had done inferior or non-competitive work. Rather, it appears that white contractors no longer wanted to work with people of color unless required to do so. 7

7. There appears to still be inequalities in obtaining business loans from banks. One study conducted by the University of Colorado at Boulder, found that blacks seeking business loans are two to three times more likely to be rejected than whites.8 A 2001 study conducted by the National Economic Research Associates for the state of Maryland concluded that loan denial rates for minority-owned firms (and particularly for African-American-owned firms) were significantly higher than for other groups. Moreover, when minority-owned businesses did receive bank loans, they typically had to pay higher interest rates than did comparable white-owned firms.

Commercial lending discrimination places minority-owned firms at a significant competitive disadvantage. The higher cost of capital and its reduced availability mean minority firms are forced to either charge higher prices for their goods or services or accept significantly smaller profit margins. In either case, the public cost of such discrimination is reduced competition and a less robust economy.

Research has shown that the most effective ways to meet goals of hiring people who have been traditionally denied jobs is to change recruiting practices and to review exam questions for bias. When these two things are done, scores tend to even out.

Gallup Poll. June 8-25, 2006. N=2,032 adults nationwide, including oversamples of Blacks and Hispanics weighted to reflect their proportions in the general population. MoE ± 6 (for all adults).

.

“Do you feel that racial minorities in this country have equal job opportunities as whites, or not?”

.

Do

Do Not

Unsure

%

%

%

ALL adults

46

53

1

Non-Hispanic whites

53

47

1

Blacks

17

81

2

Hispanics

34

62

3

Affirmative Action in Education

Nearly all college and universities have voluntarily adopted affirmative action programs. These programs are designed to expand access to education for historically underrepresented groups. Those who support affirmative action would say that affirmative action programs are necessary in education because of the existence of unequal funding of schools, unequal expectations of student achievement, biased or Eurocentric content in educational materials, and tracking. Those opposed to affirmative action in education believe that affirmative action undermines the quality of student bodies by giving positions to people other than the most qualified applicants. Some opponents of affirmative action, such as Ward Connelly, are opposed to affirmative action because it reinforces negative stereotypes about minorities among the dominant group and creates self-doubt among minority group members. How would supporters of affirmative action justify their position against such arguments?

As mentioned above, one criticism of affirmative action is that affirmative action programs have a negative impact on white college applicants. However, the research doesn’t seem to support this belief. Affirmative action programs in college have a very small impact on white college applicants. Most students attend colleges with no real affirmative action to speak of, in that blacks and whites are admitted at equal rates and and anyone meeting minimal requirements is accepted. It is only in the most elite colleges, attended by the top students, that affirmative action comes into play at all. 9 Despite so-called favoritism shown to blacks under affirmative action, the rate at which colleges and universities have been admitting blacks has actually fallen since the 1970’s. 10

What about reverse discrimination? Do affirmative action programs keep more qualified white students out? Ronald J. Fiscus argues in his 1992 book, The Constitutional Logic of Affirmative Action that it does not. His argument is thus: in the absence of institutional racism and white privilege, blacks would be roughly equally distributed throughout the economy and educational institutions relative to their share of the population. So that if blacks make up thirteen percent of the general population, they should, absent any discrimination, make up thirteen percent of the applicants to a law school, for example. Therefore, according to Fiscus, if an affirmative action program boosts the representation of blacks at an educational institution it can’t be viewed as an unfair racial preference and harmful to white applicants. For example, if blacks make up thirteen percent of the population, but make up only ten percent of a law school applicants, the three percent difference would have to be explained as evidence of discrimination. If a college uses affirmative action to address the three percent difference, it should not be viewed as taking away seats in the law school for whites, because absent any discrimination, those three percent of seats would not be available to them anyway. How does Fiscus’s theory square with the most famous reverse discrimination case, Bakke v. Regents of the University of California? In the 1978 case, Bakke v. Regents of the University of California, the Supreme Court ruled that racial preferences in higher education admissions for the educational purpose of having a diverse student body was unconstitutional. Alan Bakke had applied for entrance into the medical school of the University of California. The school had an admissions policy which set aside 16 of 100 slots for racial minorities. Bakke sued and won, claiming that he would have been admitted had it not been for the racial set asides. But would he? According to Fiscus’s theory, no. If racial minorities make up sixteen percent of the population, and there is no discrimination or institutional racism, they should account for sixteen seats. In such a perfect world, Bakke’s record would have placed him below the top 100 candidates. It can be argued that Bakke had no right to that seat because in the absence of racism and discrimination it would have been fairly won by a minority applicant.

The most recent reverse discrimination Supreme Court decision came in 2003 with the University of Michigan. There were two separate cases. In Grutter v. Bollinger, the Court reaffirmed that race may be considered along with other factors in public higher education admissions for the educational purpose of having a diverse student body. In Gratz v. Bollinger, the Court ruled that in public higher education admissions, it is not acceptable to award a fixed number of points toward admission for applicants belonging to underrepresented minority groups. The Gratz decision may be the more important of the two. The Court ruled that the University of Michigan’s undergraduate policy of awarding 20 points out of a possible 150 points to students from “underrepresented minority groups (URMs for short) was unconstitutional because the 20 points were off limits to whites. But were those 20 points unfair? A close examination of the University’s scoring system questions the Court’s decision. If we look at where all 150 points can be made from, a good argument can be made that the 20 points were justified. Although URMs could get twenty points that whites could not get, applicants from low-income backgrounds, regardless of race, and applicants who attended low-resource schools, regardless of race, would also have twenty points added to their totals. Because these three twenty-point “bonuses” could not be combined with one another (in other words, poor blacks from inner city schools were not getting sixty points), the effect of such a policy was to provide the same twenty points to disadvantaged whites, and Asians as were provided to blacks, Latinos, and American Indian students.11

In addition, there were many other points that were available to whites, and which it would have been very unlikely for URMs to receive. For example, applicants from the state’s Upper Peninsula- a rural, and overwhelmingly white area- received sixteen additional points: ten for simply being from Michigan, and another six for being from that particular part of Michigan. So a poor white student from the Upper Peninsula would get 36 points (20 for poor, 10 for Michigan resident, and 6 for U.P. resident), while a black applicant would only get 20 points for race. The University of Michigan also awarded up to ten points for attending an academically challenging high school, and eight more points for taking an especially demanding curriculum. As was discussed in a previous unit, students of color are disproportionately underrepresented at the most affluent and challenging private and public schools where they are not offered advanced placement courses, exposed to qualified teachers, and have access to the same funding as white students. Therefore, through no fault of their own, black, Latino, and American Indian students are all but excluded from access to these 18 points, while whites students would be disproportionately likely to receive them. Finally, the University of Michigan also awarded four points to applicants whose parent or grandparent attended the school- a benefit that would almost all go to whites, given the history of segregation in higher education. 12

What all of these different factors make clear is that the whites who successfully sued the University of Michigan were not likely bumped to make way for people of color, so much as to make way for other whites who fit certain criteria better than they did. Ultimately, none of the plaintiffs in the case ever showed in court (nor did they even try to show) that they would have been admitted in the absence of affirmative action. Indeed, there were far more points that were likely to be disproportionately awarded to whites, and that were all but off-limits to people of colors, than there were points available to people of color that were off-limits to whites.

In April of 2014 the Supreme Court ruled that a state’s voters are free to outlaw the use of race as a factor in college admissions. Justice Anthony Kennedy said voters in Michigan chose to eliminate racial preferences, presumably because such a system could give rise to race-based resentment. Kennedy said nothing in the Constitution or the court’s prior cases gives judges the authority to undermine the election results. Strongly dissenting from the majority, Justice Sonia Sotomayor said the decision trampled on the rights of minorities, even though the Michigan amendment was adopted democratically.

The Supreme Court in June of 2016 upheld the race-conscious admissions program at the University of Texas, saying that the plan taking race into consideration as one factor of admission is constitutional. In Fisher v.Texas, Abigail Fisher, a white woman, alleged that she was rejected from Texas’s flagship public university in 2008 because of her race. The University of Texas at Austin turned to race-based admissions to increase diversity after studies showed low numbers of students of color in the classroom. The Supreme Court explained that a university’s use of race must meet a test known as “strict scrutiny.” Under this test, a university’s use of affirmative action will be constitutional only if it is “narrowly tailored. ”The admissions criteria that UT Austin uses is very narrow. The university admits 80 percent of freshman classes through the race-neutral “Top Ten Percent” plan: Any Texas student who graduates in the top 10 percent of his or her class gains automatic admission. Race is a factor for the remaining 20 percent.

Some critics of affirmative action point to the lower graduation rates of minority students than the graduation rates of white students as evidence that affirmative action in college admissions has resulted in the admission of students who are not as capable. But a number of facts undermine this argument. First, the racial gap in graduation rates is smallest at the schools that make the “most” use of affirmative action (elite schools that are hard to get into) compared to state colleges that are less selective, and admitted most applicants regardless of race without using affirmative action programs. 13 The higher black dropout rate at white colleges is also contrasted with the high graduation rates at historically black colleges and universities. It would appear that it is not because of a lack of academic merit that blacks have underperformed their white counterparts. Rather, financial obstacles, hostile racial climates on many campuses, and other non-merit factors influence and affect the success of black students in colleges and universities.

Affirmative action, despite its criticisms, has been responsible for bringing many minorities into the middle class, as well as increasing minority representation in the professions. Affirmative action programs have also contributed to the narrowing of income gaps along racial, ethnic, and gender lines. However, affirmative action has had almost no effect on low-income, poorly educated, chronically unemployed minorities. Despite the benefits of affirmative action for more advantaged minorities, minority groups taken as a whole remain substantially disadvantaged in income, employment, and education compared with whites as a whole.

It wasn’t until the Naturalization Act of 1790 that the federal government developed a cohesive procedure for naturalization. Immigrants at that time were granted citizenship after living in the U.S. for at least two years, provided they were “free white persons” of “good character.”

The nation’s policy towards immigration has always had racial and ethnic overtones, and as such, has made it controversial. Americans have over the decades been opposed to new immigrants for two main reasons: the belief that immigrants depress wages and take jobs from those who arrived here before them, and the ethnocentric belief that some Americans do not want to admit people who are “different from us”. Because of changes to immigration policy the vast number of the one million or so legal immigrants that arrive each year to the United States are from non-European countries. Immigration policy in the United States has been influenced by Xenophobia (the fear or hatred of foreigners) which led to nativism (beliefs and policies that favor native-born citizens over immigrants). Overall, two-thirds of the legal immigrants come to join their families, one-seventh because of skills needed in the United States, and another one-seventh because of special refugee status.14

The previous paragraph focused on legal immigration. But the United States is also the destination of many “illegal” immigrants. Estimates suggest net illegal immigration of around 350,000 per year in the late 1990’s (U.S. Citizenship and Immigration Service, 2003a). Illegal immigrants arrive in the United States in two main ways: 1) through illegal entry of one of our borders (primarily the Mexican border) or by 2) overstaying their work or educational visas. There are currently an estimated 11.2 million unauthorized immigrants living in the United States. This compares to about 3.5 million in 1990. The United States also has a policy of deportation for illegal immigrants. According to Department of Homeland Security (DHS) data, there was an average of about 40,000 removals each fiscal year from 1892 to 2008. Fiscal years 2009-12 saw an average of about 396,000. The surge in deportations came in the mid-1990s during the Clinton administration, and has been on a steady rise ever since.

National Immigration Legislative Acts

As was mentioned in a previous unit the first major national immigration act was with the passage of the National Origins Act in 1924. This overtly racist piece of legislation restricted immigration for each group on proportional representation of each group in 1890. This act favored immigration from northern and western Europe which received 70% of the immigration slots. This act, plus the Great Depression, had the effect in the 1930’s of decreasing immigration to its lowest level in a century.

In the discussion of the many different ethnic groups in previous units, it has been mentioned that immigration patterns for some of the groups changed in the 1960’s. Much of this change is responsible due to the Immigration and Nationality Act of 1965. The Act abolished the national origins quota system (from Immigration Act of 1924), eliminating national origin, race, and ancestry as bases for immigration to the United States. It also established allocation of immigrant visas on a first-come, first-served basis, under a seven-category preference system for relatives of U.S. citizens and permanent resident aliens and for persons with special occupational skills needed in the U.S. In addition, the act established a category of immigrants not subject to numerical restrictions: immediate relatives (parents, spouses, children) of U.S. citizens. Finally, the act limited Eastern Hemisphere immigration to 170,000 and placed a ceiling for the first time on Western Hemisphere immigration (120,000). However, neither the preference categories nor per-country limit were applied to the Western Hemisphere.

A key piece of immigration policy was passed in 1986 called the Immigration Reform and Control Act. It attempted to solve the problem of illegal immigration in two ways: 1) to legalize immigrants through an amnesty program, and 2) to prevent employers from hiring undocumented workers. Since the act did not reduce immigration, it is perceived to not have worked. Why didn’t it work? For three reasons. First, there are too many different forms of identification that job applicants can use to demonstrate legality, some of which are easily forged. Second, the great income inequality between the United States and Mexico and its neighbors to the south acts as a huge incentive to get people to go to the United States looking for a better economic future. And third, because of the economic benefits gained by U.S. corporations who want the cheap labor that illegal immigration provides.

In 1996, President Bill Clinton signs the Personal Responsibility and Work Opportunity Act and the Illegal Immigration Reform and Immigrant Responsibility Act as part of an overhaul of the nation’s entire welfare and immigration systems negotiated with Republicans. The first bill blocks legal immigrants, in addition to illegal immigrants, from receiving food stamps and other public benefits, in an effort to ensure immigrants aren’t coming to the U.S. to collect welfare.

In 2012 President Obama announces a new policy to let “dreamers” brought to the U.S. illegally as children to apply for deportation deferments, a way of remaining in the country temporarily without the threat of deportation. Those approved could receive work permits, allowing them to work legally.

Comprehensive immigration reform has eluded Congress for years, moving decisions into the executive and judicial branches of government and pushing the debate into the halls of state and municipal governments. Meanwhile, the fates of the estimated eleven million undocumented immigrants in the country, as well as future rules for legal migration, lie in the balance. President Trump has made immigration reform a priority for his administration. There are many people opposed to his reform ideas so it remains to be seen if he will be successful in passing any new immigration laws.

As long as there remains a great divide between the wealthy nations and the poor nations, countries like the United States should expect that poor people will try to immigrate into wealthy nations. This brings up the question : should the United States continue to allow a large number of immigrants into our country each year? The positions for both sides are outlined below.